Submission - Australian Citizenship Test (2008)
Legal
Australian Citizenship Test
Submission by
the Human Rights And Equal Opportunity Commission to the Australian Citizenship Test Review Committee
5 June 2008
Human Rights and Equal Opportunity Commission
Level 8, 133 Castlereagh St
GPO Box 5218
Sydney NSW 2001
Ph. (02) 9284 9600
A: Introduction
1. The Human Rights and Equal Opportunity Commission (HREOC) welcomes the
Minister’s decision to appoint an independent Australian Citizenship Test
Review Committee (the Committee) to consider the content and operation of the
Australian citizenship test (the test) since its introduction in October
2007.
2. HREOC has previously provided two submissions on the citizenship test:
first in September 2006 to the Citizenship Taskforce of the Department of
Immigration and Citizenship in response to the Discussion Paper on citizenship
testing (Australian Citizenship: Much More than Just a Ceremony), and
second, in July 2007 to the Legal and Constitutional Affairs Committee on the Australian Citizenship Amendment (Citizenship Testing Bill)
2007[1]. In both
submissions HREOC indicated that it did not support the introduction of a
citizenship test by the preceding government. However, in the event that a test
was implemented, the submissions provide comments on the legislative framework
for a citizenship test and guidance on the content and implementation of the
test. HREOC encourages the Committee to have regard to these submissions.
Indeed many of the comments below are based on HREOC’s previous
submissions recast to respond to the Terms of Reference of the current review
and the government’s report on the operation of the test in its first 6
months of operation entitled Australian Citizenship Test: Snapshot
Report, April 2008 (the report).
B. Summary
3. A human rights approach to citizenship requires that States have a
legitimate purpose in implementing measures that might disadvantage particular
groups of people because of their language, their national or social origin or
their birthplace.
4. Applicants from Non-English Speaking Background (NESB) and with low
literacy levels are disadvantaged by the test in its current form. Such
applicants are not able to enjoy to the same extent as others the benefits of
being an Australian citizen, including employment in the public sector,
protection from deportation or having the ability to travel as an Australian
citizen.
5. HREOC’s present submission is mainly directed to improving the test
so as to minimise the negative impact that it is having on particular groups of
people based on their language, their national or social origin or their birth.
In this regard it is recommended:
- that the content and the format of the test should be modified to diminish
its discriminatory impact; - that alternative procedures and exemptions from the eligibility criteria be
provided in appropriate cases; - that support services be extended to improve the capacity of applicants from
NESB and refugees to pass the test, including human rights programs and
education; and - that safeguards be provided for applicants who fail the test.
C. The human rights framework
6. A central concern in HREOC’s submission to the Citizenship Taskforce
in 2006 was that there was a real prospect that the proposed citizenship test
would have a discriminatory impact on people applying to be citizens on the
grounds of language, national or social origin and/or
birth[2]. HREOC was concerned that a
NESB person was likely to be at a disadvantage in passing an English test
compared with a person from an English-speaking background. In addition, a
person from a developed country was likely to have higher literacy levels and
therefore be at an advantage in passing a formal written test compared with
a person from a less developed country.
7. Based on an analysis of the international law jurisprudence concerning a
State’s obligations under the International Convention on the Elimination
of All Forms of Racial Discrimination (ICERD) and Article 26 of the
International Covenant on Civil and Political Rights (ICCPR) it was submitted
that because of the likelihood that the test would breach these conventions, the
government must ensure that the proposed test is:
- pursuant to a legitimate aim;
- proportionate to achieving its aims; and
- based on reasonable and objective criteria.
8. HREOC further
submitted that while the government’s justification for supporting the
introduction of a citizenship test satisfied the above criteria, there was
inadequate evidence that the citizenship test would achieve its stated goals.
The goals as set out in various places in the government’s Discussion
Paper were:
- improving participation by people seeking to become citizens in the
Australian community; - building social cohesion and integration;
- maximising economic benefits for individuals and society; and
- promoting an understanding of the meaning and opportunities of
citizenship.[3]
9. The available evidence on the operation of the test since
October 2007, including that set out in the government’s report
substantiates the concerns expressed in HREOC’s submission to the
Citizenship Taskforce that the introduction of a citizenship test would have a
discriminatory impact based on language, national or social origin and/or birth.
Further there is no evidence in the report that the test has succeeded in
achieving its aims as set out in the Discussion Paper in 2006 and as indicated
in the Terms of Reference for the current review.
D. The discriminatory
impact of the test
10. The available information on the Citizenship Test shows evidence of the
following:
- There has been a fall in the number of people applying for citizenship since
the test was introduced in October 2007. In the 6 months since the new test came
into operation, 25,067 people applied for citizenship. This is lower than the
comparable period from October-March in any year for the last decade, when the
number of applications ranged between 35,889 (1999-2000) and 75,757
(2006-2007)[4]. - Applicants under the Humanitarian Program have failed the test at a much
higher rate than other applicants[5]. - Applicants from non-English speaking countries, like Afghanistan and Iraq,
are not able to gain Australian citizenship as readily as other applicants who
are born in English speaking
countries[6]. - Computers and information technology represent an obstacle to some groups
gaining
citizenship[7].
11. The
above findings confirm HREOC’s initial concerns that the test is having a
discriminatory impact on NESB applicants. Applicants with low levels of English
literacy are also disadvantaged by the test.
12. The report also indicates that refugees are being disadvantaged by the
requirement of a formal test. This finding suggests that people with low levels
of English literacy have failed the test at a higher rate than other more
literate applicants, such as those in the skilled migration stream and
applicants from mainly English speaking backgrounds.
13. These disparities are likely to be exacerbated if the level of English
required to understand and therefore pass the test is above a basic English
standard. Petro Georgiou’s submission sets out the views of linguistic
experts Professor Ingrid Piller of Melbourne University and Professor Tim
McNamara of Macquarie University that the current test exceeds a basic English
standard.
14. Applicants disadvantaged by the test in its current form are not able to
enjoy to the same extent as other applicants the benefits of being an Australian
citizen, including employment in the public sector, protection from deportation
or having the ability to travel as an Australian citizen.
E. Achieving the purpose of the test
15. As indicated above, a human rights approach to citizenship requires that
States have a legitimate purpose in implementing measures that might
disadvantage particular groups of people because of their language, their
national or social origin or their birth.
16. The clearest identification of the goals of the citizenship test is
contained in the 2006 Discussion Paper and these are outlined above. The
documentation supporting the present review (the Terms of Reference, the Report,
and the Minister’s media release dated 28 April 2008) does not
specifically delineate the current government’s objectives in relation to
the citizenship test, although reference is made in the Terms of Reference to
broad goals such as: ‘encouraging people to find out more about our great
nation’; helping citizens understand ‘the responsibilities and
privileges which being an Australian citizen brings’; and providing a
‘mechanism for determining whether a person meets the general legal
requirements for becoming an Australian – including whether they possess a
basic knowledge of the English language’.
17. The report on the operation of the test to April 2008 does not indicate
that the goals set out in the 2006 Discussion Paper of increasing participation
in the Australian community and building social cohesion and integration are
being met. To the contrary the report shows that the number of people applying
for citizenship since the introduction of the test has decreased compared with
the same period in the previous year when the test was not in operation.
18. The current review provides an opportunity for the present government to
reconsider and clarify what it is seeking to achieve from the citizenship test
and whether, in view of its discriminatory impact, the test is the best way of
achieving these goals.
19. If the test is not the best way of achieving these goals then, as
recommended by HREOC in its previous submissions, the test should be withdrawn
and other mechanisms for bringing about these goals should be considered. Some
alternatives to a formal written citizenship test are discussed below.
F. Improving the operation and effectiveness of the test
20. The following comments and recommendations are directed to improving the
test so as to minimise the negative impact that it is having on particular
groups of people based on their language, their national or social origin or
their birthplace. They are based on submissions that HREOC has previously made
in relation to the citizenship test.
1. The content and the format of the test should be modified to
diminish its discriminatory impact.
21. There are two areas in which the content and format of the test should be
reviewed to diminish its discriminatory impact.
- The linguistic complexity and the cultural specificity of both the test and
the resource booklet should be reviewed to ensure that they do not present
barriers for certain categories of persons seeking to become citizens. Failing
to answer questions about Sport for example is neither indicative of a person
being a good citizen, or necessary for
citizenship[8].
In
relation to this issue HREOC supports the submission made by Petro
Georgiou[9] to the Committee that the
Minister should seek the advice of experts in the fields of linguistics and
cross-cultural communication to ensure that the linguistic and cultural content
of the test does not exceed the requirement for becoming a citizen under the Australian Citizenship Act, 2007 that applicants have ‘a
basic knowledge of
English’[10].
- The introduction of computer facilitated testing could create difficulties
for applicants who do not have the necessary computer skills and dexterity, for
example, the elderly and those from developing countries. In order to minimise
the risk of the proposed test having a disparate impact on groups of applicants,
assistance in basic computer skills should to be provided. Alternatively, the
format of the proposed testing should not be exclusively on-line, but could
include more traditional types of testing, such as in paper form and through
interview[11].
2.
There should be provision for alternative procedures and exemptions from the
eligibility criteria in appropriate cases.
22. The Report indicates that applicants under the humanitarian program are
particularly disadvantaged by the test. HREOC has recommended in its previous
submissions that the legislation establishing the test should provide for
alternative procedures to overcome this disadvantage. These alternative
procedures are outlined below.
- HREOC has submitted that provision for an interview with an officer of the
Department of Immigration and Citizenship to assess the legal requirements of
becoming an Australian citizen may overcome the discriminatory impact of the
citizenship test. This alternative procedure could be conditional upon the
applicant sitting and failing the written test (either once or on a number of
occasions) or could simply be triggered by an application to the Minister. In
exceptional cases, it might also be appropriate for the Minister to waive the
testing requirement altogether for a particular
applicant[12].
- The government could provide that the completion of a language and
information course would satisfy the requirements for becoming a citizen for
those otherwise unable to sit the test. If the government were to implement such
a course, it would need to ensure that non-citizens are provided with
appropriate services and assistance to attend the
course[13].
- Another possible alternative is to offer the chance for applicants
disadvantaged by the test to gain citizenship through an interview process.
Within an interview, an applicant could be tested for English proficiency and
given the opportunity to provide supporting evidence of participation and
integration in the community, for example, employment records; certificates for
completed courses; evidence of involvement in community activities, associations
and projects; volunteer work; and
referees[14].
- HREOC has also recommended that there should be provision for the following
groups to be exempt from testing:
children[15];
refugees[16]; people on family
re-unification visas[18] (if the
family is still in Australia); people who marry in Australia; people whose
children, or grandchildren are born in Australia; and, older applicants,
incapacitated persons, and long term
residents[19].
Refugees, by their very definition, do not have effective
protection of their original nationality and it is therefore imperative that
they have access to a new nationality. Article 34 of the Refugee
Convention requires Australia to take steps, ‘as far as possible, to
facilitate the assimilation and naturalisation of
refugees’[20].
HREOC has submitted that, should a formal citizenship test be introduced,
steps should be taken to protect the family unit in accordance with Article 23
(family life) of the ICCPR[21]. In
addition, Article 10 of the Convention on the Rights of the Child (CRC)
emphasises the importance of family reunification. All family members should be
entitled to citizenship without all having to pass the proposed
test[22].
The government should ensure that the failing of a citizenship test would not
lead to statelessness, in accordance with the Convention relating to the
Status of Stateless Persons [23].
23. In order to accommodate these alternative procedures the Australian
Citizenship Act 2007 would need to be amended so as to give the Minister
discretion to allow such procedures to take place. Details on how this might be
done are included in HREOC’s submission to the Legal and Constitutional
Committee[24].
24. The recommendations above follow the procedures adopted in Canada in
which allowance is made for a person to demonstrate compliance with the
eligibility criteria by undergoing an interview with a citizenship judge as an
alternative to formal testing[25].
Moreover, the Canadian legislation also provides the Minister with a discretion
to waive the eligibility criteria on ‘compassionate
grounds’[26]. A
further discretion is granted to the Governor in Council to direct a grant of
citizenship where there are circumstances of ‘special and unusual
hardship’ or to ‘reward services of an exceptional value to
Canada’[27]. The Canadian
legislation also provides that before a citizenship judge rejects an application
for citizenship, the citizenship judge must consider whether or not to recommend
an exercise of discretion on these grounds, namely compassionate grounds,
special and unusual hardship or exceptional value to
Canada[28].
25. Similarly, in New Zealand, the Citizenship Act 1977 allows the
Minister to grant citizenship to the applicant if the Minister is satisfied that
granting citizenship ‘would be in the public interest because of
exceptional circumstances of a humanitarian or other nature relating to the
applicant’[29].
3. Support services should be extended to improve the capacity of
applicants from NESB and refugees to pass the test, including human rights and
education programs.
26. HREOC submitted that, in order to advance its stated aims of enhancing
the skills, employment and participation of new citizens, the government must
ensure that citizenship applicants are provided with appropriate services to
assist them to pass the proposed
test[30].
27. HREOC has also submitted that, as part of the implementation of the test,
the government should embark on an education program both for applicants of the
test and for the broader society about human rights and responsibilities.
Education in human rights would be particularly helpful in assisting applicants
to understand the Australian values that are identified on Page 5 of the
resource booklet Becoming an Australian Citizen.
28. In addition, such a program would be consistent with the aims of the
World Program for Human Rights Education and the activities that have taken
place and are planned to take place under that program in Australia. The first
phase of this program is the development of resources for human rights education
in schools[31]. Many of these
resources can be adapted to a range of audiences and in a range of
languages.
29. Such a program would further advance the aim of promoting mutual respect
between diverse cultures, whilst acknowledging the contribution that migrants
and refugees make to Australia. To develop this, funding for specific programs
to change community attitude, combat prejudice and discrimination against all
Australians would improve opportunities for new Australians to gain meaningful
employment[32].
4. Safeguards for applicants who fail the test
30. HREOC has previously submitted that the citizenship test be accompanied
by a clear and effective right of appeal, including the possibility of full
merits review. This is important for ensuring that persons whose rights and
freedoms are violated by the test or its application have access to an effective
remedy, as required under Article 3 of the
ICCPR[33].
[1] These submissions are available
on the Human Rights and Equal Opportunity Commission’s website at
http://www.humanrights.gov.au/racial_discrimination/citizenship/index.html
[2] The International
Convention on the Elimination of all forms of Racial Discrimination (ICERD)
and Articles 2 and 26 of International Covenant on Civil and Political
Rights (ICCPR) prohibit discrimination on the above mentioned grounds. For
more detail see Human Rights and Equal Opportunity Commission’s (HREOC)
submission to the citizenship taskforce, Department of Immigration and
Multicultural Affairs on the discussion paper: Australian citizenship: much
more than just a ceremony September 2006, (Submission to Citizenship
Taskforce), paragraphs 4, 5, 6 and 7.
[3] See HREOC’s submission to
the Citizenship Taskforce, pp 6-8.
[4] The data provided on request by Department of Immigration and Citizenship
to the office of Petro Georgiou MP. See Petro Georgiou, The new citizenship
test Submission to the Citizenship Testing Review Committee, 22 May 2008, p
22.
[5] Australian Citizenship
Test: Snapshot Report, April 2008, p 5.
[6] Australian Citizenship
Test: Snapshot Report, April 2008, p
10.
[7] This concern arose from
HREOC’s consultation with Liverpool Migrant Resource Centre on 14 May
2008.
[8] On the nature of the
test questions see HREOC’s submission to the citizenship taskforce,
paragraph 36.
[9] See Petro
Georgiou, The new citizenship test Submission to the Citizenship Testing
Review Committee, 22 May 2008, p
5.
[10] Sub-section
21(2)(e)
[11] See HREOC’s
submission to the citizenship taskforce, paragraph
37.
[12] See HREOC’s
submission to the citizenship taskforce, paragraph
27.
[13] See HREOC’s
submission to the citizenship taskforce, paragraph
28.
[14] See HREOC’s
submission to the citizenship taskforce, paragraph
30.
[15] See Article 2 of The Convention on the Rights of the Child (CRC) states: ‘State parties
shall take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis of the status,
activities, expressed opinions, or beliefs of the child’s parents, legal
guardians, or family
members.’
[16] See Article
34 of the Refugee Convention states: ‘The Contracting States shall
as far as possible facilitate the assimilation and naturalization of refugees.
They shall in particular make every effort to expedite naturalization
proceedings and to reduce as far as possible the charges and costs of such
proceedings.’
17 See Article 23: ‘The family is the
natural and fundamental group unit of society and is entitled to protection by
society and the
State.’
[18] See Article 23
the ICCPR: ‘The family is the natural and fundamental group unit of
society and is entitled to protection by society and the
State.’
[19] See
HREOC’s submission to the citizenship taskforce, paragraph
44.
[20] Article 34 states:
‘The Contracting States shall as far as possible facilitate the
assimilation and naturalization of refugees. They shall in particular make every
effort to expedite naturalization proceedings and to reduce as far as possible
the charges and costs of such proceedings.’ See HREOC’s submission
to the citizenship taskforce, paragraph
46.
[21] Article 23 states:
‘The family is the natural and fundamental group unit of society and is
entitled to protection by society and the
State.’
[22] See
HREOC’s submission to the citizenship taskforce, paragraph
47.
[23] Article 32: ‘The
Contracting States shall as far as possible facilitate the assimilation and
naturalization of stateless persons. They shall in particular make every effort
to expedite naturalization proceedings and to reduce as far as possible the
charges and costs of such proceedings.’ See Commission’s submission
to the citizenship taskforce, paragraph
48.
[24] Paragraphs 34 and
35
[25] See description of test
procedures at: http://www.cic.gc.ca/english/citizenship/cit-test.asp
[26] Citizenship Act R.S., 1985, c. C-29, s
5(3).
[27] Citizenship Act R.S.,
1985, c. C-29, s 5(4).
[28] Citizenship Act R.S., 1985, c. C-29, s
15.
[29] Citizenship Act 1977 (New Zealand), s
9(1)(c).
[30] See HREOC’s
submission to the citizenship taskforce, paragraph
41.
[31] See http://unesdoc.unesco.org/images/0014/001478/147853e.pdf
[32] See HREOC’s
submission to the citizenship taskforce, paragraph
52.
[33] See HREOC’s
submission to the citizenship taskforce, paragraph 52.